Contributed by Rachel Nussbaum Wichert, Friends of Animals
Two papers I recently coauthored with my mother, Martha C. Nussbaum (Legal Protection for Whales: Capabilities, Entitlements, and Culture and The Legal Status of Whales and Dolphins: From Bentham to the Capabilities Approach) address the issue of cetaceans (whales and dolphins) and whether they can be accorded legal status in some situations. Some major issues involved here are the situation of cetaceans in captivity and their use in scientific experiments. We argue that there is a strong case for considering cetaceans “non-human persons” and according them legal rights, most importantly standing to sue in their own right. Thus far, however, courts have not accepted this argument. We also discuss the ways in which the capabilities approach might make our argument more successful. Copes of both papers are below. The following is a summary of our basic approach.
Arguments that cetaceans are “like” humans and therefore ought to be given rights are ineffective because they use humans as the sole measure of beings with rights. Cetaceans, however, have their own highly developed intelligence and ability to reason, even if it is not a human intelligence. This is one reason why captivity imposes such hardships on them. The various locations of SeaWorld have increasingly come under fire for practices such as orca shows, which entertain visitors but contribute little to the well-being of the animals. Indeed, in 2016 SeaWorld announced that it would abandon its orca breeding program. The success of the documentary “Blackfish”, which examines the circumstances leading to the death of a trainer, focused the public’s attention on the issue of whales in captivity and led many to question whether it is ethical to keep animals of such high intelligence in captivity.
Efforts to take legal action on behalf of whales have been complicated by the fact that no judge has yet ruled that an animal has standing to sue in its own right. In the absence of any such decision, animals are not considered to have any sort of legal status comparable to “personhood.” How might animals be able to make such a claim that would be convincing in court? One approach is a utilitarian one based on suffering. Another is an anthropomorphic claim based on reason and intelligence. Finally, there is the capabilities approach, based upon the striving of these creatures to live a flourishing life characteristic of their species.
The utilitarian argument, based on the suffering of animals, has obvious appeal in U.S. law. It has long been recognized that a, if not the, major obstacle to legal progress in this area is the doctrine of standing. In order to have standing to go to court, a creature needs to be directly affected by the conduct in question. However, in practice the question of standing has clearly not proved to be adequate. The anthropomorphic argument, then, might be more productive. The fact that animals of many types exhibit intelligence and cognitive capacity has been known for some time. Thus, one approach would be to retain the focus on intelligence and cognitive capacity as hallmarks of legal personhood, but to insist that some species of animals possess these characteristics. One problem with this argument, however, is that it values animals because and only insofar as they are similar to us. It fails to respect them in their own right.
The Capabilities Approach avoids these pitfalls. It incorporates the way that scientists and ethically sensitive people think about the complexity of animal lives. What this approach means in general is that cetaceans are entitled to the opportunity to exercise their major capabilities, social and physical, which means at least: to move freely in a large space, to interact regularly and in an unforced way with other species members, to be free from intrusions into their bodily integrity. We do not yet have a comprehensive understanding of the cetacean way of life, but the Capabilities Approach shows us the right questions to ask.